The Role of Law in the Era of Change (A. Criscuolo, журнал "Kutafin University Law Review", N 2 (Volume 2), October 2015)

The Role of Law in the Era of Change*(1)

A. Criscuolo (Italy),

President of the Constitutional Court of the Italian Republic

Журнал "Kutafin University Law Review", N 4, October-December 2015, р. 251-262.

The paper analyses the changes in the modern life and law. The main factors of such changes are the technological progress and the evolution of rapid and efficient means of communication as well as the opportunity to get access to vastest information resources from practically any geographical location via internet. In this context the great goal of modern society is the creation of common values with all due respect for different cultural traditions. These changes taken place in the post-modern society have resulted not only in the emergence of novel disciplines and new categories of fundamental rights but also in the evolution of traditional juridical institutions, such as those of civil responsibility, the property law and the marriage law. The author notes and approves the trend of some growth of the 'promotional' or 'stimulating' rules in modern legislation. Such approach provides and guarantees the existence of a 'space' where decisions are not made once for all and helps to develop the human freedom. The author emphasizes that the complexity of the problems that the law will have to solve creates a need for a dialogue between lawyers and experts in different fields of knowledge. Further the author underlines that in the modern reality, so complicated and so quickly changing, the role of individuals who are supposed to interpret legal norms is fundamental. Finally the author marks the increasing role of international law in the modern world particularly in the sphere of human rights protection.

Table of contents

I. Introduction

II. The factors changing our modern life and the law

III. The creation of common values with all due respect for different cultural traditions as the great goal of modern society

IV. The interconnection between the law and other disciplines and practices should be strengthened

V. The role of interpreting the law today

VI. The increasing role of international law in the modern world

VII. Conclusion

I. Introduction

I would like to thank all those present and to express my appreciation of this event aimed at exchanging different views and sharing experiences stimulating in this way relevant discourses, involving topics of particular complexity.

II. The factors changing our modern life and the law

It has always been common to think that the continuous transformation of the socio-economic climate of states has an influence on various fields of law intended to give a response to new problematic challenges of a community in a permanent state of change, or so called global community.

It is obvious that, in the last decades, several factors have affected and modified traditional systems of organization of social life both national and supranational. Due to the technological progress and the evolution of rapid and efficient means of communication and the opportunity to get access to vastest information resources from practically any geographical location via internet, the human race today has to face challenges and resolve problems that have not existed until recently.

The fact that interpersonal relations do not any longer depend on the physical distance has removed all barriers determined by geography, and thus led to the creation of virtual locations, which facilitate contacts, exchanges and interaction of practically any type.

The modern world scene, characterized by an economic system in which not only markets, production and consumption but even different civilizations are in a permanent contact at a global scale, has changed the interplay between the law and the geographical factor. According to Schmitt, 'law is no longer closely connected to the "land" in which the legal systems and the geography of the human community manifest themselves'*(2) - it is now expected to cross state borders to be applied to a non-homogeneous plurality of peoples interacting in a unified global space. This transformation process has enhanced contacts between very diverse cultures and traditions and intensified an interaction, which, in its turn, has led to an increasing 'erosion' of differences, now replaced by the promotion of standardized models. We have been witnessing an ever-growing spread of totally different cultural patterns which resulted not only in the emergence of novel disciplines and new categories of fundamental rights but also in the evolution of traditional juridical institutions, such as those of civil responsibility, the property law and the marriage law*(3).

Together with this evolutionary process there is a need to find a common way to single out the problems, which can only be resolved by joint effort of individual states. To name only a few of such issues: migrations of peoples, the exploitation of natural resources, environmental protection, terrorism, organized crime and internet crime. As an integral component of social life the law cannot, therefore, but confront globalization processes in the terms of its frameworks in which its subjects find themselves within different legal systems.

III. The creation of common values with all due respect for different cultural traditions as the great goal of modern society

The co-existence, in one legal space, of different non-homogeneous law systems has dramatically changedthe role ofthelawyer,nowsupposed to carry out his activity following both national and supranational legal procedures and being involved in a process of integration and mutual coordination. Expanded interaction between different socio-cultural systems has, in its turn, impeded the establishment of a unified legal system.

Thus, in the light of these transformations we need to reconsider the role and function of the law.

Firstly, we will emphasize the need to specify that each state seeks to play a different role in terms of the limits on its political and legislative intervention in social relations. The problem of establishing the common goals is, however, in no way new.

The concept dates back to The Laws of Plato, where the Philosopher expresses his ideas in a speech addressed to Clinia and Megillos: 'As you can see, if the constitution of our country is to be complete and perfect it must, among its institutions, have one that will, first of all, understand the goal we have mentioned, which is the goal we set for ourselves; secondly, the way how that goal is to be attained, what sort of laws those laws should be, and what sort of people we need to achieve it. If a state does not meet these requirements, it is no wonder if, devoid of intellect and common sense, it will fail in all its actions'*(4).

Thus, we need to decide whether the legal procedures do have as their priority - within the framework of the traditional distinction between the classical liberal model and that of a social state - the protection of fundamental rights, by laying down non-invasive rules regulating the conduct and acts of individuals or, on the contrary, by giving up their neutrality, they are to intervene in private relationships in order to regard the protection of those rights as their main concern, to the extent of replacing, by such unwarranted and gross interference, the choices and decisions of the parties involved. Yet - whichever of these models is preferred - it is obvious that the transformation process presupposes the choice of a legislative strategy thought as best suited to achieve the goals set.

Regarding this last aspect, it needs to be emphasized how frequently the legislation applies the terms 'promotional' or 'stimulating' for instance, in such spheres as: fiscal matters, environmental protection or the exploitation of energy resources. Such a policy involves the development of normative acts characterized by refusing from the traditional repressive function in favor of encouragement of "virtuous" practices that became especially attractive due to the introduction of what we know as 'positive sanctions'. As Bobbio notes, 'while in the classic liberal constitutions, the principal function of the state seems to be that of protection (or guarantee), in post-liberal constitutions, alongside the protection or guarantee, it appears to be, more frequently, the promoting function'*(5).

It is worth mentioning that the Italian Constitution combines both of the above mentioned models. Together with the protection provisions stipulated in Art. 2 of the Constitution under those: 'The Republic recognizes and protects the inalienable human rights' it contains numerous provisions that assign to the Republic functions of a 'promotional' character.

First to be mentioned is the second paragraph of Art. 3 declaring: 'It is the task of the Republic to remove economic and social obstacles that actually restrict the liberty and equality of citizens, inhibit the full development of human beings and prevent effective participation of all working people in the political, economic and social organization of the Country.' Not even less important is Art. 4 declaring: 'The Republic recognizes the right of all citizens to work and promotes conditions to make this right effective.'

What's more, Art. 5 provides that 'the Republic, one and indivisible, recognizes and promotes local autonomies'; Art. 9 states that 'the Republic promotes the development of culture as well as of scientific and technological research'; Art. 11 establishes the following: 'Italy rejects war as an instrument of threatening the freedom of other peoples and as a mean of resolving international conflicts; and agrees, on condition of parity with other States, to restrict sovereignty, when it is necessary to form a system that would guarantee peace and justice in relations between nations, promote and support the organizations that strive for such goals.'

The existence of mentioned constitutional provisions proves that the Italian Constitution - as well as in those of other post-liberal states - contains motivation and stimulation norms. The preference for a 'promotional' type of legislation characteristic for a state that overviews transformation rather than preservation as its top priority - implies a clear and conscious understanding of what it intends to achieve.

While making clear 'what political goals are to be attained' one cannot get away from the idea that in the era of change 'the law is not a finished product' and the standards are defined and set as "rules-frames, capable of taking on different content and adapting to variable contexts", thus giving some freedom of action to the juridical 'player'*(6). All this results in the need to provide - even in the global context - a 'common platform' for identifying and setting the goals and, furthermore, for fostering common values with all due respect for different cultural traditions. It is necessary, therefore, to follow the path of searching for joint procedures, in order to ensure the fullest participation in the debate concerning the identification of such common values, with allowance for diversity ranking first. In other terms, it is necessary to operate a definition of so called 'rules of the game' in order to protect the rights of minorities and 'underrepresented' persons.

A matter requiring urgent attention is, thus, that of procedural norms, i.e. those that define the terms of access and the formal rules of the discussion, which facilitates competition between diverse approaches. It is needed an act aiming at guaranteeing that even the technical procedure of political competition would take place in an environment where transparency and fair play exclude any potential form of arbitrariness.

All this presupposes a convergence of a basic premise, i.e. the recognition a freedom of individuals as a primary value. In fact, as was mentioned above concerning the Italian Constitution, although this principle should be extended to a supranational scale, 'if it is true that the "rules of the game" are intimately connected with "political rights" (such as forming a party, free elections, free, equal and secret ballot, etc.), there exists a direct line which unites all these rights, whatever way they may be defined/classified (civil rights, political rights, social rights) .Violation of any of these rights would inevitably affect all the other ones'*(7).

This need to create common procedural rules takes on another aspect concerning the topic - the subject of heated debate - of the objective and universal nature of human rights in that it tends to provide and guarantee the existence of a 'space' where decisions are not made once for all. On the other hand, the collision between the existing differences and the need for elaboration of criteria and rules respecting political, social and cultural pluralism will inevitably entail compromises reached by resorting to the principle of balancing values. The role of law, within this context, is, therefore, to supply a 'channel' through which the project of co-existence may develop and eventually prove viable.

IV. The interconnection between the law and other disciplines and practices should be strengthened

The complexity of the problems, which the law will have to solve, makes us shift the emphasis onto another aspect of the issue, i.e. the need for a dialogue carried out as joint effort by experts in different fields of knowledge.

Nowadays, even a purely legal analysis of these problems cannot ignore the interconnection between the law and other disciplines, which tends to always happen whenever the understanding of a problem involves for example knowledge as science, technology, ethics, or anthropology. This requirement also gives rise to another feature, characteristic of modern law, i.e. the rejection of the very concept of a 'legally reasonable' state, which would, as it did before, assign the task of developing normative regulations to individual persons.

Global law, on the contrary, is characterized by multiple actors of normative authority, which is now diffuse in the sense that, together with the persons who are officially appointed to work out legal norms, there exist other actors, even if they are independent individuals who considerably contribute to the formation of both national and supranational juridical systems. This phenomenon manifests itself in the contribution made by the Lex mercatoria recognized by Italian jurisprudence as a set of legal norms, regulating the business community , as well as so-called 'law shopping', and, more generally, any other phenomena that can be a threat to the supremacy of state in the process of establishing legal norms.

It is obvious that the development of internet already has, in many respects, challenged the supremacy of law as a source of regulation of economic relations, replacing it with a private legal instrument, much more suitable for meeting the requirements of flexibility, speed, and informality in the contacts of individuals acting in a global space. In no way incidental is therefore the rapid emergence of the category of contractual law designed to be 'over imposed' on the traditional law as a sort of an effective business tool. This transformation has a serious impact on the traditional methods of establishment and development of juridical rules in which new subjects are now taking part.

What is undergoing changes nowadays is the identity of the lawyer, a person having to work within a legal environment open to experiences and practices brought to life by social realities. The Italian Constitutional Court has, since its first verdicts, shown the awareness of the fact that the law reflects the existence of a community where every sphere of social life is permeated by dynamism. In the Court's understanding, the social meaning of a legal norm changes from the one which was originally assigned to it by the legislator and, in the course of time, it makes the norm become inadequate and, therefore, unreasonable.

Thus, in its decision N 6 of 1956 the Court ruled that 'as the principles of the legal system such regulations and directives of general character must be observed which can be deduced from the systematic interconnection, coordination and perfect rationality of the norms that are involved in forming - at the concrete historical moment - the basis of the actual legal system.' The rationale behind this understanding is even more obvious in the epoch of globalization. In fact, if the rules are not any longer only the creation of the lawyer but rather the result of contribution of other social actors the opportunity to differentiate between what is law and what is not becomes seriously reduced.

While the still-existing monopoly of the state in setting legal standards/norms presupposes the institutionalization of a selected canon of content, meant to assume a normative character deriving from the predictability of subjects or deputies, nowadays, on the contrary, the existence of numerous contributors results in a kind of osmotic process going on between thelaw and the objective social realities. Consequently, in order to find solutions suitable for everybody, the lawyer should start a dialogue and share experiences with specialists in other spheres of human knowledge. This, in turn, will lead to the formation of a system of rules more complex one, but that would, at least at first sight, interpret the cultural specifics and diversity better. Without disregard for the qualifying character of generality and abstractness, the law is now much more than ever before permeable to the world of facts from which it originated.

Yet, while broader participation in the formation of norms could be considered as progress of democracy, it is important, however, to take into account the controversial nature of possible consequences. On the one hand, it is the risk of establishing generalized models that only appear to establish a 'community of equals' but, in fact, are likely to neglect the differences between individual cases; and on the other - it may increase potential instability of the legal system that is formed as a result of permanent interaction between the subjects acting as legislators.

V. The role of interpreting the law today

If the legal norm is to reflect social awareness it is the moment of its application when its capability of affecting relations between individuals can be evaluated. Therefore, the role of individuals who are supposed to interpret those norms at different levels is fundamental. In this perspective, the large-scale spread of these common rules may result in their assuming a 'fluid form' only if this or that rule is interpreted in the same way.

Evidently, the process of interpreting the norm must include as its first step the identification of the values and principles on which the final meaning of any judgment is based, which brings us to the need of establishing such common premises. Characteristically, it is the process of increasing standardization of market models, which can be, to a great extent, accounted for by the pressure of economic factors.

However, these reasons may not coincide conceptually with those that derive from the protection of fundamental rights, not so much because they necessarily contradict each other but rather because they are reasons of a different nature. Although this controversy is in no way new, it cannot yet be considered as resolved.

In fact, not only does the emergence of multiple participants in the formation of common rules exclude, from the very onset, an opportunity for the law to originally contain in itself a homogeneous feature, but because, due to a great variety of sources, even if the same value is very often merely formally shared, there do exist differences in their effective content and proper understanding, such as in the case of methods of legal protection. Think, for example, about such delicate sphere as family protection - the subject of never-ending debate-or health care, with its issues of high ethical and social relevance, e.g. euthanasia or doctor-assisted birth practices. Another example is that of environmental protection and, particularly, the variety of energy resources, which capacity to preserve the ecosystem - as in the case of nuclear energy - is the subject of very different, sometimes diametrically opposed evaluations.

What's more, while it is certainly true that any legal system contains rules to exercise crime control, it is obvious that the criteria to define what is regarded as criminal behavior is very different in different countries. The same holds true for the content of sanctions, which can be imposed, as well as their characterization, definition and purpose.

Finally, there exist similar differences in the justice administration, ranging from the realization of the 'right to be tried by the judge', and the criteria of selecting persons holding the position of a judge to, eventually, the guarantees of the trial procedure.

VI. The increasing role of international law in the modern world

Given all this, in full awareness of the need to show proper respect for and afford adequate protection to, different traditions and cultures, we must admit the crucial role played by the International Agreements and Conventions, which have assumed increasing authority both over rank and file judges and the High Courts. It is an indisputable fact that for many years now judges of both regular and supreme courts have derived their criteria for interpreting domestic laws from decisions made by supranational Courts.

In the Italian experience, the Constitutional Court in its judgement N 388 of 1999, proclaimed that 'the human rights recognized by universal as well as regional conventions, and signed by Italy, are also recognized and fully protected by the Constitution (cf. decision N 167 of 1998): not only by force of the general recognition of inalienable human rights, as provided by Art. 2 of the Constitution, and in ever-growing awareness of their equal importance for the preservation of human dignity (cf. decision N 167 of 1999), but also because, besides the consensus about the common set of such rights, the different formulas that describe them become integrated, completing each other in their interpretation.' In this perspective, we should consider the Amendment to the Italian Constitution of 2001 which, in particular, Art 117, 1 comma, states that 'legislative authority is exercised by both the State and the Regions in full compliance with the Constitution as well as with the duties arising from the local law and the international obligations.' For the purpose of this principle with the reference to the European Convention of Human Rights and Fundamental Freedoms, the Constitutional Court, marking the epoch moment, assigned to the Convention N 348 and 349 of 2007 the status of a common source of law, provided with all constitutional guarantees.

VII. Conclusion

If what I said helps us to predict the challenges that the law has to face in the era of change, the fact that I was here in the company of persons of such considerable social significance would be, I believe, an impressive demonstration of our willingness to reach a consensus in all respects and raise our mutual awareness of the difficulties we have to deal with.

I do hope that the protection of human rights, especially those, which are viewed as inalienable, will be safeguarded more effectively, with a clear understanding that they are among the basic principles of juridical culture in all modern legal systems.

Bibliography

Bobbio N, Dalla Struttiira alia Funzione (Edizioni di communita 1977) (Bobbio N, From Structure to Function (Edizioni di communita 1977)).

Ferrarese MR, Le Istituzioni della Globalizzazione (II Mulino 2000) (Ferrarese MR, The Institutions of Globalization (II Mulino 2000)).

Schmitt С, II Nomos della Terra (Adelphi, Milano 1991) (Schmitt C, The Nomos of Land (Adelphi 1991)).

Zagrebelsky G, Giustizia Costituzionale (II Mulino 2012) (Zagrebelsky G, Constitutional Justice (II Mulino 2012)).

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*(1) Translated from Italian by Vitaly A. Rodionov, PhD (Linguistics), Associate Professor at the Kutafin Moscow State Law University English Department.

*(2) C. Schmitt, Il Nomos della Terra (Adelphi 1991) (C Schmitt, The Nomos of Land (Adelphi 1991)) 20.

*(3) In the Italian legal system this phenomenon is especially visible if we consider the institutions which originated in Roman law, e.g. reparation of damages, dating back to Lex Aquilia, III rd.c.B.C.

*(4) Plato, The Laws 962.

*(5) N Bobbio, Dalla Struttura alla Funzione (Edizioni di communita 1977) (N Bobbio, From Structure to Function (Edizioni di communita 1977)) 25.

*(6) The expressions placed in inverted commas are by MR Ferrarese, Le Istituzionidella Globalizzazione (Il Mulino 2000) (MR Ferrarese, The Institutions of Globalization (Il Mulino 2000)).

*(7) G Zagrebelsky, Giustizia Costituzionale (Il Mulino 2012) (G Zagrebelsky, Constitutional Justice (Il Mulino 2012)) 102.